Seòmar agus comataidhean

I thank all my colleagues and the cabinet secretary for their guidance this morning. I am very worried about the decision that we have been asked to make, which is to choose between competing jury sizes and majorities, because I have no idea which one will ensure that justice is done—that the guilty are convicted and that the innocent go free.

Members might recall that the 2015 final report of the post-corroboration safeguards review indicated that our unique system—let us remember that it is unique; nowhere else in the world runs our system—has unique features that

“form important parts of a balanced system.”

Those features—the corroboration requirement, the 15-person jury, the three verdicts and the simple majority—have been in place for hundreds of years; all four were in place from the mid-18th century. The bill will make fundamental changes to that system: it will remove the third verdict and move to a two-verdict system, and the requirement for corroboration has already changed. What impact will those changes have on a hitherto balanced system? I do not know, but neither does the Lord Advocate.

Katy Clark rightly drew our attention to the Lord Advocate’s letter to us last week. The cabinet secretary suggested that corroboration is still there, but we know from His Majesty’s Advocate v PG and JM that there has been at least a degree of dilution. In her letter, speaking specifically to corroboration, the Lord Advocate concedes that

“the full implications of these decisions are still being considered”.

Indeed, in her evidence to us on 26 February, the cabinet secretary conceded that the changes that we are making might impact “the balance of fairness” in the criminal justice system.

Colleagues, no one can tell us what the correct evidence-based system should be in order to preserve the safeguards. For example, Rape Crisis Scotland has said that we should not change the simple majority, but it concedes that there is insufficient evidence to back that position. I think that the cabinet secretary spoke persuasively earlier as to why a simple majority should not be preferred. We heard from the senators of the College of Justice, who suggested a two-thirds majority but, as has been articulated throughout our sessions, they were not sure and had a number of caveats.

I am grateful to the cabinet secretary for her remarks. For the benefit of the committee, I note that I have seven amendments in the group, which are numbered 122 to 128, and they all relate to section 32 on page 16 of the bill. As drafted, section 32 will amend the Vulnerable Witnesses (Scotland) Act 2004. As section 22D of the 2004 act sets up a presumption that the personal conduct of certain cases should be prohibited, section 32(4) in the bill, as drafted, sets out that

“a register of solicitors who may be appointed by a court”

in such circumstances should be maintained.

For full transparency, I remind my colleagues that I am a practising solicitor.

Subsection (2) of proposed section 22E says:

“The Scottish Ministers, by regulations... must... specify the requirements that a person must satisfy”

in order to be on and stay on the register. Regulations must then set out the processes for entry to, removal from and appealing a decision about the register. It is important to note that no members have raised any concerns about those provisions.

However, by the omission of reference to remuneration in the regulation obligation, the Scottish ministers will have the discretion to regulate on the remuneration of solicitors appointed in those cases, but they will not need to do so. Accordingly, my amendment 122 seeks to fill that lacuna in the legislation by requiring the Scottish ministers to address that aspect in the regulations.

Amendment 123, which I shall come back to, simply takes on the principle and would ensure that ministers would be obliged to confer on someone the duty to maintain the register.

Amendments 124 and 125 are consequential to those amendments.

Amendments 127 and 128 relate to the same set of amendments being made to the Vulnerable Witnesses (Scotland) Act 2004. Proposed new section 22E(3) requires that, before the regulations that we have just looked at are made under section 22E(2), the Scottish ministers “must consult” the Faculty of Advocates and the Law Society of Scotland. To the best of my knowledge, no member or stakeholder has raised any issue with that perfectly supportable principle.

It occurred to me that it is all well and good to have consultation but that it is important to know what the consultation finds and concludes. My amendment 127 would simply require that a report on that consultation be published, and amendment 128 sets out what should be in the report. That would ensure that the views of the Law Society and the Faculty of Advocates could be fully considered before regulations were made that could affect vulnerable people’s access to the legal professions. Amendment 126 would simply make a technical change to pave the way for amendments 127 and 128 to be inserted properly.

The cabinet secretary made some important remarks about amendments 123 and 125. On reflection, I can see that my amendment 123 would override the new section 22E(2)(d)(i), which, as drafted, leaves the decision on regulation with the Scottish Government, and the Scottish Government “may” then pass on the responsibility. My amendment 123 would mean that the Scottish Government “must” pass it on, whether or not that is the best idea. That requirement would not be particularly sensible, in my view, and it was certainly not my intention. I also listened to the cabinet secretary’s reflections on the agencies that would be involved and their opinion on the amendments.

With that in mind, I do not intend to move amendments 123 and 125, but I intend to move the rest of my amendments in the group.

I thank Jamie Greene for his comments so far, and I am particularly enjoying listening to him explain both sides of the case. That is helpful to the committee in deciding how to vote.

Rona Mackay’s challenge is a reasonable one. However, I have been looking at your amendment 251, Mr Greene, and I see that subsection (2)(b) simply says that

“the Board must take into account any remorse shown”.

In other words, in coming to a decision, the board would have to weigh up “any remorse shown”. By extension, does that not mean that it would also have to take into account any of the challenges that Rona Mackay has put to you and that, as a result, it is not fatal to the amendment that someone might have such difficulties?

This is just for my own clarity. At least part of your case is that amendment 251 is not necessary; the Parole Board is already doing what it addresses, so there is no need to reiterate it, and if Mr Greene chooses not to move the amendment—or, if he does, but the committee votes it down—the remorse piece will still be there, because it is there already. Is that a fair reflection of what you are saying?

I am very grateful.

I will be brief. Thank you, cabinet secretary—that was an interesting discussion with much to consider. I entirely see the points that you make. I very much enjoy the working relationship that we have, and I am pleased in particular that you will look to work with me on the definition of “victim”. I think that you take my point—we share a concern in that regard, and I look forward to working with you on the definition. I think that there is an issue, but let us explore it together and make the bill as good as it can be.

With that in mind, I will not press amendment 94 to a vote.

Amendment 94, by agreement, withdrawn.

I will speak to amendments 104, 105, 106 and 110.

Amendments 104 and 105 relate to the section of the bill that describes how the commissioner will carry out investigations into whether an agency has—colloquially speaking—stood up and accounted for victims and witnesses. Both amendments are to section 12, which sets out how the commissioner may gather evidence and from whom, as part of their investigation. Section 12 says that

“The Commissioner may require any person .. to give evidence”

and “produce documents” if they are conducting an investigation under that section. Section 12(4)—rightly and understandably, in my view—clarifies that representatives of the Crown Office and Procurator Fiscal Service need not provide the information required by the commissioner if, according to the Lord Advocate, doing so could

“prejudice criminal proceedings in”

a particular

“case or ... be contrary to the public interest”.

Amendments 104 and 105 introduce a similar exception for defence practitioners—or “legal representatives”, as they are tightly and precisely defined in amendment 105. Members will note that such representatives are bound by a duty of confidentiality with regard to their clients. To keep things in good order, I again remind members that I am a practising solicitor, although I do not do criminal work, and have not done any for around 20 years.

For those who are not aware—these are my words, but members can check this if they wish to—the duty of confidentiality is fundamental to a solicitor or legal practitioner. It is non-negotiable. It is an obligation on a solicitor; it is a core principle of the solicitor-client relationship; and it is essential in maintaining trust in the legal profession. Were a solicitor to breach that duty, which is enshrined in various codes of conduct, in laws and in professional ethics, there would be very serious consequences indeed. Accordingly, my amendment 104 simply looks to replicate the protections in section 12(4) for legal representatives—that is, defence counsel—and to clarify that the commissioner’s investigative powers do not override the duty of confidentiality and that the principle of equality of arms is upheld between the prosecution and the defence by giving similar protections to both.

Amendment 106 also relates to the commissioner’s investigations, but applies to section 14, on the power of the commissioner to gather information. It is my belief that if we are to have a commissioner, and if they are to be effective, they have to have some teeth. What struck me when considering the bill was that the commissioner did not seem to have those teeth. Under section 14, they can “require” an “agency to supply information”, serve a notice demanding it and revoke such a requirement. However, they cannot enforce it.

My amendment 106 tries to give the commissioner teeth by ensuring that they are provided with enforcement mechanisms by which to exercise the power to ingather information. However, I am mindful of the fact that the committee has not, I think, had an opportunity to discuss during our evidence taking what those enforcement powers might look like. Moreover, more widely, I think that the Scottish Parliament is currently discussing other bills that provide Scottish ministers with the facility make regulations on enforcement powers when information is required by public agencies for different purposes. Therefore, instead of trying to come up with a specific enforcement power, I thought that it would be more sensible—and, I dare say, more palatable to the committee—to reserve to Scottish ministers a power under the bill to bring in, by regulations at a later stage, whatever enforcement power would be appropriate. That is what my amendment 106 seeks to do.

Amendment 110, which is my final amendment in the group, concerns section 21, which sets out that, in order to assist the commissioner in doing their job, they “may request” the co-operation of specific criminal justice agencies. Section 21(2) deals with the legitimate response of an agency upon receiving such a request, which will be either yes or no. Again, however, the commissioner has no enforcement power if they receive a no, and my concern was whether the committee would prefer them to have that enforcement ability. Absent any evidence taking, I do not feel comfortable proposing the extent and scope of such an enforcement power. It seems to me that, as with amendment 106, the sensible thing would be to reserve to Scottish ministers a power under the bill to bring in whatever enforcement power is appropriate by regulations later.

I am grateful to the committee for considering my amendments, and I move amendment 104.

Will the member take an intervention?

I am listening carefully to what the cabinet secretary is saying. How does she respond to the challenge posed by Children 1st in the documents that it has supplied? It is saying, “Okay, the commissioner can be brought in, but now is not the time.” What we really ought to be concentrating on are things that make a difference now, using the limited resource that we have in place.

Forgive me for the delay—